JR 2 - Illegality and unreasonableness

Question 1

What are the four grounds of judicial review?

Answer 1

1. Illegality
2. Unreasonableness
3. Procedural impropriety
4. Legitimate expectations

Question 2

What does illegality, as a ground of review, ensure?

Answer 2

That exercise of power is confined within the limits given to the Executive prescribed by governing legislation

Ultra vires; not entitled to act beyond powers!

Question 2

What are the 5 sub-categories of illegality?

Answer 2

1. Simple illegality (ultra vires)
2. Errors of law
3. Errors of fact
4. Abuse of discretion
5. Retention of discretion

Question 3

What is simple illegality? (doctrine of ultrav vires)

1st sub-category

Answer 3

Refers to a decision that goes beyond the legal boundaries of a legal power given to a body

E.g. police officer arrests someone in a situation in which there is no power to arrest

Question 4

Will a public body have acted unlawfully if it does something reasonably incidental to a power that it has?

E.g. power to build public lavatories - can a public body build a subway under a road that was necessary to access those lavatories?

Answer 4

No - would not have acted unlawfully

Question 5

What does the principle of legality refer to?

Answer 5

A presumption that PARL did not intend to authorise the infringment of fundamental/constitutional rights of the rule of law unless it had given specific statutory authorisation

I.e. broader concept than just simple ultra vires

ex parte Witham - applicant sought J of Lord Chancellor’s decision in setting such a high court fee - held that act did not authorise them to set fees so high to effectively deny access to courts (a fundamental right) - the instrument therefore declared to be ultra vire

Question 6

What does ‘errors of law’ refer to?

2nd sub-category

Answer 6

Decision-maker makes mistake regarding a Q of law e.g. misinterpreting the meaning of words in legislative provision

E.g. misunderstanding the rules of a scheme meanrt a decision made based on them should be quashed

Question 7

What are the 3 exceptions to errors of law?

I.e. when will the court not review errors of law?

Answer 7

1. Error of law is not decisive (same decision would have been reached anyway)
2. Decision-maker is interpreting a special system of rules (e.g. statutes of an old university, where PARL deems a decision to be final, superior court decision)
3. Where power granted was so imprecise that it is capable of being interperted in many different ways (e.g. interpreting what the word ‘substantial’ could mean)

Question 8

What are the 3 types of ‘errors of fact’ which are susceptible to JR?

3rd sub-category

Answer 8

1. Precedent facts
2. No evidence for a fact
3. Ignorance or mistake of an established fact

Courts were traditionally resistant to make challenges based on allegation that decision-maker made mistake of fact - was perceived as being too much an interference in proper territory of executive

Question 9

What is a precedent fact?

Type of error of fact susceptible to JR

Answer 9

Where decision-maker’s power to decide on a particular matter (their jurisdiction) depended on an initial finding of fact; the precedent fact

White and Collins - statutory power allowed compulsory purchase of land if the land was not ‘parkland’ - landowner objected to compulsory purchase on grounds local authority had mistakenly failed to realise that land was part of park - CoA could review decision because determination of factual issue went to whether decision-maker had necessary power in the first place

Question 10

What is no evidence for a fact?

Type of error of fact susceptible to JR

Answer 10

Where a finding of fact on which a decision is based is supported by no evidence at all

E.g. Coleen Properties - Minister’s report, containing decision that it was not reasoably necessary for satisfactory development or use of cleared area to acquire property, was based on no supporting evidence

Question 11

What is ignorance or mistake of an established fact?

Type of error of fact susceptible to JR

I.e. where decision-maker’s power did not depend on initial finding of fact and cannot rely on no evidence rule

Answer 11

Where an established fact (inc availability of evidence), which is material to the decision, is ignored or misunderstood

E.g. Tameside - Education Sec halted re-introduction of grammar schools believing that re-introduction would lead to educational chaos/disruption - HOL concluded that he had wrongly jumped to conclusions and either misunderstood/was not informed as to nature and effect of professional educational advice available **)

Question 12

What is the 4 part test for ignorance or mistake of established fact?

Answer 12

1. Mistake as to existing fact (inc availability of evidence)
2. Fact/evidence must have been established (uncontroversial and verifiable)
3. Appellant must not have been responsible for the mistake
4. The mistake must have played a material (not decisive) role in reasoning

Question 13

What are the two ways in which a decision-maker can abuse their discretion?

4th sub-category

Discretion = freedom of choice they have within powers given to them by statute

Answer 13

1. Failing to take a relevant consideration into account/taking irrelevant consideration into account
2. Using the power for an improper purpose

Lots of overlap between the 2

Question 14

What are the 3 types of considerations to be (not) taken into account?

Answer 14

1. Mandatory factors - must take into account (by virtue of statute expressly or impliedly)
2. Prohibitory factors - must not take into account
3. Discretionary factors - decision-maker can chooose to taken into account (subject to reasonableness)

e.g. Venables and Thompson - sentenced child killers to sentences longer than recommendations of judges
* Failed to take into account welfare of sentenced children
* Wrongly took into account emotive public petitions (public clamour) about the individual case

Question 15

What is improper purpose?

Answer 15

Decision-maker using powers given to it by PARL for purposes other than for the purposes it was given to them; in accordance with the intentions of the statute that conferred the power

E.g. Padfield - Minister had power to direct investigation but did not because he believed he could be embarassed by an unfavourable report

Question 16

What happens when the statute does not clearly indicate a purpose for which it grants power?

Answer 16

The courts can imply a power by construing the statute as a whole

E.g. Congreve - implied purpose of power to revoke TV licences was not to raise revenue but to ensure such licences were not wrongfully used or obtained (so Congreve should not have had licence revoked merely because he bought it before fees increased)

Question 17

What are the two ways in which decision-makers will fetter or restrict themselves if given discretionary powers? (Retention of discretion)

5th sub-category

Answer 17

1. Fettering of discretion
2. Unlawful delegation of discretion

Question 18

When will a public body have ‘fettered’ its discretion?

Fetter = restrict

Answer 18

When it has acted in a way that hampered its own ability to properly exercise a discretionary power e.g. not exercise power at all

E.g. ex parte Fire Brigades Union - Home Sec fettered own discretion by refusing to consider whether to bring into force statutory criminal injuries compensation enacted in CJA - the statutory power to set date for implementation of tha Act imposed a continuing obligation/discretion ob Sec to bring it into force

Question 19

When will a policy be deemed to fetter discretion?

Answer 19

When adopting a rigid/blanket policy to the effect that outcome of a particular case is decided in advance without proper discretion in response to individual factors

I.e. mind must be kept open

Question 20

When will a (rigid) policy be allowed to stand?

Answer 20

When there is evidence that exceptional individual cases could or have been decided on their merits - but cannot merely say it has ‘shut its ears to the application’

E.g. ex parte Collymore - policy on student grants was worded flexibly but had never resulted in an appeal despite 300 appeals against refusal was held to have been unlawful fettering

Question 21

What is the general rule on delegating discretion?

Answer 21

Not normally allowed to delegate unless statutes expressly allow - otherwise will be unlawful delegation of discretion

Lavender - refusal of application for planning permission was challenged after Minister of Housing had abdicated decision to Minister of Agriculture

Question 22

What is the Carltona principle and how is this reconciled with the unlawful delegation of discretion?

Answer 22

• Carltona principle = the recognition it would not be practical for a GOV minister to personally make all the decisions they are empowered to make, so they are allowed to delegate discretion to civil servants even if statute does not expressly say so
• The minister remains politically accountable to PARL for that decision - so must be a person of suitable seniority

Question 23

What is the Wednesbury test?

Unreasonableness hereon

Answer 23

Court can undertake a review (re reasonableness of a decision) where a decision on a competent matter is so unreasonable that no reasonable authority could have come to it (requires something overwhelming)

I.e. Not for court to interfere just bc it holds a diff view on policy

E.g. Short - a red-haired teacher being dismissed just because she had short hair

Question 24

What does ‘irrationality’ mean in reasonableness context?

Reformulation of Wednesbury test (not a replacement)

Answer 24

A decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it

Question 25

What are the 3 main classes of unreasonableness?

Answer 25

1. Material defects in decision-making process
2. Oppressive decisions
3. Decisions that violate constitutional principles

Significant overlap

Question 26

What are ‘material defects in the decision-making process’ refer to and what are the two kinds?

1st class of unreasonableness

Answer 26

Defects not faulty in terms of illegality but are serious enough to render a decision flawed
1. Wrongly weighing-up relevant factors
2. Failure to provide a comprehensive chain of reasoning; ‘irrationality

Question 27

What is meant by ‘wrongly weighing up relevant factors’?

Answer 27

When a decision is made that a reasonable individiual/body would not have made taking account of the necessary consideration

Cross-over with illegality

Duffy - appointment of prominent loyalist proponents to a body set up to resolve disputes relating to marches - decision made which a reasonable Sec of State could not have made - appointments unlawful

Question 28

What is meant by a ‘failure to provide a comprehensive chain of reasoning’?

Answer 28

Where a decision is so unreasonable as to verge on the irrational

This sub-category is often described as irrationality

E.g. Fielder Estates - decision for a fresh inquiry re planning application after one had already been closed was not logical as the objector’s views could have been considered in writing

Rogers - availability policy of NHS breast cancer treatment that could provide funding for some women (in relevant eligible group) but not others on basis of exceptional circumstances was irrational

Question 29

What are oppressive decisions?

2nd class of unreasonableness

Answer 29

A decision imposing excessive hardship or representing an infringement of rights which is deemed unecessary

Considered to be oppressive and therefore unreasonable

E.g. Wheeler - a ban on Leicester Rugby Club from using the Council’s ground for its matches was introduced because 3 players intended to play in SA during apartheid regimee - was deemed unreasonably punitive (also found to be Wednesbury unreasonable)

Norney - refusal to refer cases of five IRA prisoners to Parole Board until tariff expired meant they would have served many months longer than if referrals made in advance - held to be unlawful and oppressive

Question 30

What are decisions that violate constitutional principles?

3rd class of unreasonableness

Answer 30

Decisions that contradict the rule of law; are not consistent and not sufficiently certain

Held to be unreasonable as they represent arbitrary decision-making

McCartney - tariff sentence set for Irish Republican for attempted murder of a policeman was set at a much higher level than others who committed more serious crimes of a similar type; action of Home Sec was inconsistent with treatment of other similarly affected persons so was Wednesbury unreasonable

Question 31

What is meant by intensity of review?

Second important issue of unreasonableness (after sub-classes)

Answer 31

The degree to which the court will scrutinise the decision under dispute

Practical manifestation of sep of powers checking executive action

Question 32

What subject matter in executive decisions will be scrutinised more and less closely?

Answer 32

• More = decisions affecting fundamental/human rights
• Less = broader questions of policy

Fundamental rights traditionally seen as something courts under duty to protect cf policy of democratically elected officials

Question 33

What is institutional competence?

Answer 33

Describes how courts are more experienced, knowledgeable and skilled in assessing questions on rights (over policy)

So they should and are better at it

Question 34

How high/low does Wednesbury set the standard of review?

Answer 34

Very high - ‘so unreasonable that no reasonable authority could have come to it’

Notably high/exceptional level of unreasonableness must be found

But has been modified in some situations…

Question 35

What intensity of review applies to decisions on social and economic policy?

Answer 35

Lower; high deference - original high threshold of Wednesbury continues to apply area of political decision-making e.g. budgeting

‘super-Wednesbury’ applies to political judgements

Nottinghamshire CC - Env Sec’s guidance to local authorities setting spending limits had been approved by PARL resolution so court could not intervene - had the ‘democratic seal of approval’

Question 36

When can the court intervene in matters of high policy?

Answer 36

When bodies/individuals act very irrationally (in spite of evidence)

E.g. Javed - CoA held minister acted irrationally by making a SI, that went against an abundance of evidence of the contrary, designating Pakistan as a country where in general there is no risk of persecution

Question 37

When will courts be willing to exercise a more intense degree of scrutiny?

‘sub-Wednesbury’

Answer 37

Issues concerning fundamental or human rights

Question 38

Will a heightened scrutiny virtually guarantee a successful unreasonableness challenge?

Answer 38

No! Especially if the decision is supported by a significant body of opinion in PARL

E.g. Smith - dismissed from Army because of sexuality - reviewed by court with intense degree of scrutiny and found to have a profound effect on their rights as human beings - still failed; policy could not be classed as irrational at the time as was supported by a significant body of PARL

Question 39

What is the difference between sub- and super-wednesbury standard?

Summary of intensity of review

Answer 39

• Sub-Wednesbury standard - high intensity review for fundamental rights
• Super-Wednesbury standard - low intensity review for social and economic policy

Question 41

Is proportionality a ground of review in public law?

Means employed by decision-maker to achieve a legitimate aim must be no more than is strictly necessary

Answer 41

Under contention - Wednesbury unreasonableness has been preferred but has been suggested proportionality (with a higher intensity of review) should replace it

Wednesbury criticised as only very extreme degree can bring administrative decision in scope of judicial invalidation